AC21 invoked 3 months back and I485 denied yesterday

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knowDOL

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One of my friend saw his I485 denial in tracker yesterday. He still has his H-1B valid from the same employer A who filed 140 and 485. Currently he is with employer B working on EAD(Used AC21). His wife is also working on EAD.

what happens to his and his wife's status. Can he go back to his employer A on H1-B. Does his employer A need to file any form with USCIS to come back on H-1B. Also, can the current employer B file his H-1B transfer. Not sure if his current employer does H-1B or not. His 140 which was previously approved was denied after an RFE 3 months back. He moved out of that company after 140 is denied thinking that if he changes the company his 485 will still be ok. The reason for I140 denial was that the company closed their branch where the LC was done originally in 2004. Currently he is in a different location than his LC location.

He yet to know the 485 denial reason, but I am thinking because of underlying 140 denial. What are his options. can he appeal for his 485? can he start his GC with some Employer B or Employer C and still retain his priority date.

Also, should his wife stop working? if so, from what date? Any experiences appreciated.

Jacolantern, I am looking for an answer from, you seem to have better understanding of USCIS and AC21 law.
 
knowDOL said:
His 140 which was previously approved was denied after an RFE 3 months back. He moved out of that company after 140 is denied thinking that if he changes the company his 485 will still be ok. The reason for I140 denial was that the company closed their branch where the LC was done originally in 2004. Currently he is in a different location than his LC location.
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When was the branch closed? If it was prior to the I-140 approval then I think his chances for AC21 portability are slim, and probably none if was closed prior to the I-140 filing.
 
knowDOL said:
One of my friend saw his I485 denial in tracker yesterday. He still has his H-1B valid from the same employer A who filed 140 and 485. Currently he is with employer B working on EAD(Used AC21). His wife is also working on EAD.

what happens to his and his wife's status. Can he go back to his employer A on H1-B. Does his employer A need to file any form with USCIS to come back on H-1B. Also, can the current employer B file his H-1B transfer. Not sure if his current employer does H-1B or not. His 140 which was previously approved was denied after an RFE 3 months back. He moved out of that company after 140 is denied thinking that if he changes the company his 485 will still be ok. The reason for I140 denial was that the company closed their branch where the LC was done originally in 2004. Currently he is in a different location than his LC location.

He yet to know the 485 denial reason, but I am thinking because of underlying 140 denial. What are his options. can he appeal for his 485? can he start his GC with some Employer B or Employer C and still retain his priority date.

Also, should his wife stop working? if so, from what date? Any experiences appreciated.

Jacolantern, I am looking for an answer from, you seem to have better understanding of USCIS and AC21 law.
Click to expand...

post the date I-140 was filed
Date I-140 was approved
date the company was closed.
I know about 2 cases. Company A filed I-140, I-140 was approved. company A was not doing good both joined B on H1 and also filed I-485 with Copy of the reciept notice of company A I-140 filing (they did not had I-140 approval copy but checked online that I-140 is approved). Company A got closed after they moved to B. After I-485 pending more then 180 days Lawyer of B sent AC21 request letter and both the cases were approved in 2005.
 
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I will have to talk to him get exact dates but Company A filed labor in Branch B in Dec 2004 and LC approved in 2007, I140 was in early 2007 and approved after an year, mean while when dates became current, 485 is applied while I140 was pending. Company A is still doing good but the Branch B is closed in 2008 6 months after the I140 is approved. Since Labor is from Branch B and it no longer exists he moved out from Company A to Company B after the 140 is denied. Essentially invoked AC21 after the I140 is rejected. Company A still has his H-1B and is valid.

If the chances of his I485 approval are slim, Can he go back to his H-1B? or he should look for a new job or ask the current Company B to see if that company can sponsor H-1B.
 
knowDOL said:
I will have to talk to him get exact dates but Company A filed labor in Branch B in Dec 2004 and LC approved in 2007, I140 was in early 2007 and approved after an year, mean while when dates became current, 485 is applied while I140 was pending. Company A is still doing good but the Branch B is closed in 2008 6 months after the I140 is approved. Since Labor is from Branch B and it no longer exists he moved out from Company A to Company B after the 140 is denied. Essentially invoked AC21 after the I140 is rejected. Company A still has his H-1B and is valid.
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Who revoked the I-140? The company withdrew it, or USCIS itself revoked it on their own? Was the I-485 pending for more than 180 days at the time the I-140 was revoked? Was the I-140 actually revoked before he changed jobs, or are you assuming it was revoked at the same time the Branch B got closed?
 
jacolantern,
Looks like USCIS sent an RFE to company about the branch information and if it is still in operatoin and Company replied that the branch is now closed and USCIS issued NOID for all the I140 from that branch, that is when my friend found another job and filed AC21 and joined new company B. Seems like my friend does not have copies of I140 approval or denial for dates, but this RFE came 8 months after I140 is approved.

His online status of I140 is still approved. Company people told that I140 is denied but did not give the copy to him. When NOID for I140 from Company A was received, it was more than 18 months since the I485 was pending and he was still on H-1B did not use EAD to work.

He asking company about copies of I140 revocation so he can compare which one happened first whether the I140 revoke or AC21.

Can u answer my friends query about H-1B, if can file H-1b transfer now with EmployerB and work on H-1B now that his I485 is denied or should he stop working.
 
Good. If that branch was still open 180 days after the I-485 was filed, and still open when the I-140 was approved, and he obtained the "same or similar" job with company B before the I-140 was revoked, he would be eligible for AC21 and USCIS should not have revoked the I-140. In that case he would be eligible for a Motion to Reopen.

He can't file an H1B transfer now because he lost his H1B status. He would have to get a new H1B stamp and reenter the US with it to resume H1B status.

Or he could keep working for now, as 245(k) forgives up to 180 days.

With the Motion to Reopen things get tricky (in a good way). I believe that if the MTR is approved, the days spent working with the EAD while the MTR was pending would be considered to be days in authorized employment.

There are so many ifs and buts to juggle, he should get assistance from a good immigration lawyer.
 
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